The Plain Meaning of Torture?

Has newly minted Attorney General Alberto Gonzales studied the opinion handed down by the Supreme Court last November inLeocal v. Ashcroft? There, Chief Justice William H. Rehnquist issued a ringing reaffirmation of "plain meaning." "Our analysis begins with the language of the statute," Rehnquist wrote. "When interpreting a statute, we must give words their 'ordinary or natural' meaning."

Leocal concerned whether a drunk-driving offense—in which injury to others occurred—could be construed by the immigration authorities as a "crime of violence" meriting deportation of the offender. No, said Rehnquist—interpreting an automobile accident as a "use of physical force" violates our common sense understanding of "use." Rehnquist reasonably re-emphasized a cardinal rule of legal analysis: that interpretation must proceed by what is often called the "plain meaning rule," affectionately known to lawyers as the PMR.

But something odd happened to the PMR in the memorandum on torture that Attorney General Gonzales, as White House Counsel, solicited from the Office of Legal Counsel in the Justice Department he now heads. That memo (signed by Assistant Attorney General Jay S. Bybee, and hence known as the "Bybee Memo"), dated Aug. 1, 2002, offers the OLC's interpretation of "standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340-2340A of title 18 of the United States Code." It offers a remarkable example of textual interpretation run amok—less "lawyering as usual" than the work of some bizarre literary deconstructionist. And it's virtually impossible to read without wondering whether another casualty of this war on terror is the doctrine that words indeed mean what they say.

Bybee's analysis starts from an apparent commitment to the "plain meaning" rule. "The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause 'severe physical or mental pain or suffering.' In examining the meaning of a statute, its text must be the starting point." But, says Bybee, the statute doesn't define "severe." Absent such a definition, he continues, "we construe a statutory term in accordance with its ordinary or natural meaning." To find that ordinary and natural meaning, he turns to Webster's New International Dictionary (the 1935 edition, for some reason), then to the American Heritage Dictionary, and the Oxford English Dictionary, to discover that severe "conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure."

But this definition, however ordinary and natural, doesn't quite meet his purposes. So Bybee searches for other possible uses of the phrase "severe pain" in the U.S. Code, and discovers, as he puts it: "Significantly, the phrase 'severe pain' appears in statutes defining an emergency medical condition." "Significantly" is Bybee's transition word here—and one might ask whether the use of "severe pain" in the context of medical emergency is in fact more "significant" than any number of other uses of severe, in statutes and in ordinary usage. But this slide into medical usage allows Bybee to come up with his interpretation of choice: that the "severe pain" that defines torture must involve damage that rises "to the level of death, organ failure, or the permanent impairment of a significant body function." He's by now got us well out of common English usage and into the emergency room.

Next, Bybee interprets the language used to define "severe mental pain or suffering" in the torture statute, which includes "the prolonged mental harm caused by or resulting from A) the intentional infliction or threatened infliction of severe physical pain or suffering." To prolong, his Webster's (the 1988 edition this time) tells him, is to "lengthen in time," and this permits Bybee to segue into: "Put another way, the acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage." This transition suggests to him that "prolonged mental harm" (words not used elsewhere in the U.S. Code) might resemble post-traumatic stress disorder, lasting months or even years, noticed in torture victims.

This is thoroughly circular. It leads, over the next three paragraphs, to his claim that for torture to in fact be torture requires a specific intent to cause prolonged mental harm by one of the acts listed in the statute, and a defendant's good-faith belief that the acts he or she committed would not amount to the acts forbidden by the statute would conveniently constitute a "complete defense to such a charge." We may uneasily sense that we are witnessing a kind of free play of the signifier of the sort that literary critics and philosophers are sometimes accused of sponsoring.

The truly "deconstructive" cast of Bybee's interpretation of the torture statute comes in the next section, which takes up "Harm caused by or resulting from predicate acts." These acts include, "the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality." Since these "substances" are not further defined, Bybee sets out to make some distinctions. Here a longer quotation is necessary:

This subparagraph, however, does not preclude any and all use of drugs. Instead, it prohibits the use of drugs that "disrupt profoundly the senses or the personality." To be sure, one could argue that this phrase applies only to "other procedures," not the application of mind-altering substances. We reject this interpretation because the terms of Section 2340 (2) expressly indicate that the qualifying phrase applies to both "other procedures" and the "application of mind-altering substances." The word "other" modifies "procedures calculated to disrupt profoundly the senses." As an adjective, "other" indicates that the term or phrase it modifies is the remainder of several things. See Webster's Third New International Dictionary 1598 (1986) (defining "other" as "the one that remains of two or more") Webster's Ninth New Collegiate Dictionary 835 (1985) (defining "other" as "being the one (as of two or more) remaining or not included"). Or put another way, "other" signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed. Moreover, where statutes couple words or phrases together, it "denotes an intention that they should be understood in the same general sense."

To use the "or" of "or other procedures"—which are of course supposed to be of the same sort—to argue that "disrupt profoundly" somehow controls and limits the meaning of "mind-altering" seems to me far from commonsensical, a parsing of vocabulary and syntax that appears arbitrary and even a bit demonic.

Whether or not this meaning was intended by Congress, the way Bybee claims to find the meaning derives from an ungoverned and unscrupulous reading that uses—very selectively—dictionary definitions to produce arcane and obfuscating interpretations. It's like a parody of a deconstructive reading written by a hostile critic.

I will refrain from citing the next paragraph, which takes us into the meaning of "disrupt," as "to break asunder; to part forcibly; to rend." (Here we are back with his 1935 Webster's, and a definition my 1975 American Heritage declares "obsolete." What about a more usual definition, such as "to upset the order of"?) But Bybee needs to come out, at the end of his paragraph, with: "Those acts must penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality."